Conservatives sometimes talk about lawless, i.e., liberal, judges. Let me tell you a story about Judge Robert Clive Jones, who presided over the United States v. Estate of E. Wayne Hage, until the 9th Circuit this week reversed several of his decisions and instructed the Chief Judge to assign the case to a new judge on remand.
Wayne Hage grazed cattle on federal land in Nevada. In 1993, BLM denied his grazing permit renewal application. Hage continued to graze on federal land. The government sued, bringing claims that Hage grazed without a permit and trespassed on federal land. Open and shut, right? The government thought so and brought a summary judgment motion.
Judge Jones denied summary judgment invited the Hages to bring a counterclaim. His view was that, because the Hages had water rights, that gave them an easement to graze on federal land – notwithstanding that that precise question had already been addressed and rejected by the courts. The 9th Circuit easily disposed of the easement argument.
It then turned to the counterclaim invited by Judge Jones. First, the Court noted that the Hages’s counterclaim regarding the denial of the grazing permit renewal was slightly late, since it was a mere 22 years since denial occurred. The 9th circuit then also rejected the notion that the government’s lawsuit itself was “final action” subject to a counterclaim. As the 9th Circuit stated, “[t]here is no support for the district court’s conclusion that the filing of this action could give rise to an APA claim.”
Judge Jones did cite one case in support of his position, but in doing so, he somehow forget to cite that part of the case that contradicted his position.
Finally, the 9th Circuit instructed that the case be sent to a different judge on remand. It turns out that this judge does not hide his unwillingness to provide equal justice to the government. Here’s a sampling of the judge’s statements:
Your insistence upon a trespass violation, unwillful —your arbitrary determination of unwillfulness [sic: willfulness] is undoubtedly going to fail in this court (said to the government before the trial even started).
You have a court that’s very receptive and sympathetic to your claim (said to the Hages).
The government has been all too ready in the history of Nevada to impair otherwise suspected and substantiated rights of landowners.
As the 9th Circuit put it with commendable understatement:
The judge’s statements in this case reflect both pre-judgment of the merits and bias against the federal agencies.
Impeachment? Not going to happen, but I’ll go out on a limb and suggest that a 9th Circuit order barring him from presiding over any case involving the federal government would be perfectly reasonable.